Colorado’s statute was criticized in 2008 by the U.S. Supreme Court
in an opinion issued in the case of Walter Rothgery, a Texas man
who was not provided an attorney for several months after a first
appearance in court. The justices ruled in Rothgery’s favor, saying the right to counsel attaches when a defendant makes an initial appearance
before a judge to be advised of charges.

State Public Defender Doug Wilson tried to get Colorado’s law changed by the legislature. At the time, he estimated that doing so would add another 15,000 cases to his office’s caseload. When his efforts were unsuccessful, the defense bar and CCJRC filed the lawsuit – naming Wilson as one of the defendants.

In a motion to dismiss the case, Colorado’s district attorneys argued that the issue should be handled by the legislature, not the courts. They also say that the plaintiffs have alleged a “hypothetical controversy” about prospective defendants, rather than shown injury to an actual person or group of people as a result of the law (as the Rothgery case did). That argument is one Kane has told both sides he wants to explore further during Thursday’s hearing.

Boulder County District Attorney Stan Garnett[3] will argue for the DAs during the hearing, scheduled for 10 a.m.